Return to CALJIC Part 14-17 – Contents
F 14.52 n1 Burglary: Inhabited Dwelling Research Notes: (PC 459 & PC 460).
See Annotation, What is “building” or “house” within burglary or breaking and entering statute, 68 ALR4th 425 and Later Case Service.
F 14.52 n2 Burglary: Tent Is Inhabited Dwelling (PC 459 & PC 460).
In People v. Wilson (92) 11 CA4th 1483, 1487-89 [15 CR2d 77], the court held that a tent, if it has four sides and a roof and is used for sleeping and storage of possessions, is a “dwelling house” for purposes of PC 460(a).
F 14.52 n3 First Degree Burglary: Victim Need Not Have Possessory Right To Occupy.
In People v. Rojas (95) 31 CA4th 611, 615 [37 CR2d 361], the court held that the victim of a first degree burglary (PC 459 and PC 460) need not have a lawful possessory right to occupy the burglarized premises.
F 14.52 n4 Inhabited Dwelling Defined: Occupant Must Be Alive.
[See FORECITE F 9.03 n9.]
F 14.52 n5 Burglary: Common Area Laundry Room Of Apartment Complex Is Inhabited Dwelling.
(See People v. Woods (98) 65 CA4th 345 [75 CR2d 917] [safety and privacy expectations surrounding an inhabited dwelling house are present in the common area laundry room].)
F 14.52 n6 Burglary: Structure “Immediately Contiguous” As Inhabited Dwelling.
A home office which shares a roof and common wall with a residence, even though no door links them, is an inhabited dwelling for the purposes of the first degree burglary statute. (People v. Rodriguez (2000) 77 CA4th 1101 [92 CR2d 236].) In Rodriguez, the court held that the essential inquiry was whether the structure was functionally interconnected with, and immediately contiguous to, other portions of the house. The former requirement was met in Rodriguez, because both were maintained by the homeowner and freely traveled to and from. The latter requirement was met in that both shared a common roof and wall.
F 14.52a
Burglary: Inhabited Dwelling — Defined:
“Currently” Rather Than “Customarily” Used
(PC 459 & PC 460)
*Change first sentence of CJ 14.52 (1990 Revision) to provide as follows [added language is capitalized; deleted language is between <<>>]:
An inhabited dwelling house is a structure which is <<customarily>> CURRENTLY BEING used <<as a dwelling>> for dwelling purposes. It is inhabited although the occupants are temporarily absent, SO LONG AS THE OCCUPANTS INTEND TO CONTINUE LIVING IN THE DWELLING. [IF THE CURRENT OCCUPANTS DO NOT INTEND TO CONTINUE LIVING THERE, THE DWELLING IS UNINHABITED EVEN IF THE OCCUPANTS HAVE LEFT PERSONAL PROPERTY ON THE PREMISES.]
Points and Authorities
1. “Currently” Rather Than “Customarily” Used: The 1990 CALJIC instruction defines a dwelling as one which is “occupied and customarily used as a dwelling.” This definition is contrary to the express terms of PC 459 which defines inhabited as “currently being used for dwelling purposes …” (See also PC 246 and PC 450(d) which utilize the same definition for the offenses of shooting at an inhabited dwelling and arson.)
2. Requirement That Absent Occupants Intend To Return: While there is no requirement that the dwelling be occupied (i.e., that the occupants actually be present), it is required that the prosecution prove that the current occupants of the dwelling intend to continue living there in order for the dwelling to remain “inhabited” during the occupants’ temporary absence. (See People v. Jones (88) 199 CA3d 543, 548 [245 CR 85], discussing PC 451.)
For example, in People v. Cardona (83) 142 CA3d 481 [191 CR 109], the court held that the house was not inhabited after the tenants moved out intending never to return, even though the term of their tenancy had not yet expired and they had not completed moving all their belongings out of the house. “Where … the residents have moved out without the intent to return,the house becomes uninhabited, i.e., it is no longer being used for dwelling purposes.” (Id. at 482-84; see also People v. Guthrie (83) 144 CA3d 832, 838 [193 CR 54].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
If there is a concern that the jury might not understand the term “for dwelling purposes,” the term has been more specifically defined as a building “used as sleeping and living quarters.” (See People v. Marquez (83) 143 CA3d 797, 800 [192 CR 193]; see also, FORECITE F 9.42 n1 re: robbery; FORECITE F 9.03a re: shooting at inhabited dwelling.)
“Residence” and “dwelling house” are equivalent terms. (People v. Harrell (89) 207 CA3d 1439, 1446 [255 CR 750].)
RESEARCH NOTES
See Annotation, Occupant’s absence from residential structure as affecting nature of offense as burglary or breaking and entering, 20 ALR4th 349 and Later Case Service.
F 14.52b
Definition of Inhabited Dwelling
(PC 459 & PC 460)
*Add to CJ 14.52:
In deciding whether a dwelling house is inhabited it is the present use rather than past or future intended use which is determinative. It is the intent and not the length of the absence that controls.
A dwelling house may be currently used for dwelling purposes even though the occupants are temporarily absent so long as any of such occupants intend, at the time of the alleged burglary, to reoccupy it for dwelling purposes within a short period of time.
Just because the purpose of the structure is to serve as a dwelling does not in itself make the dwelling inhabited; it is necessary that someone be currently using this structure as a dwelling at the time of the break-in.
Points and Authorities
People v. Hernandez (92) 9 CA4th 438, 441-42 [11 CR2d 739] held that a burglarized apartment was occupied because the occupants — although they had yet to sleep there — had left their belongings in the apartment and intended to occupy it. Hernandez concluded that the above instruction “adequately expressed the concepts of occupancy and habitation”.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 14.52c
Burglary Based On Intent To Use Utilities
*Add to CJ 14.52:
You may not convict the defendant of burglary based on [his] [her] alleged use of [utilities] [___________] unless the prosecution has proven beyond a reasonable doubt that the defendant originally entered with the specific intent to use the [utilities] [___________]. You may not infer such intent based solely on the entry itself.
Points and Authorities
Entry with the intent to use the home’s utilities may form the basis for a burglary conviction. (In re Leanna W. (2004) 120 CA4th 735, 742; People v. Martinez (2002) 95 CA4th 581, 584-585 [the defendant was found guilty of burglary after he entered a home with the intent to take a shower]; see also People v. Dingle (85) 174 CA3d 21, 29 [entry for the purpose of making unauthorized long-distance telephone calls]; compare In re Leanna W. (2004) 120 CA4th 735, 742 [Martinez and Dingle require “intent to use the home’s utilities [be] proven with evidence other than the entry itself”].)
F 14.52d
Burglary: Required Intent May Not Be Inferred
From Entry Itself
*Add to CJ 14.52:
You may not infer the intent required for burglary based solely on the entry itself.
Points and Authorities
See In re Leanna W. (2004) 120 CA4th 735, 742 [“intent to use the home’s utilities [be] proven with evidence other than the entry itself”].
